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Derided by detractors as the
“shoot-first-and-ask-questions-later” law, or the “make-my-day”
doctrine, castle doctrine proposals have been aggressively pushed
in state legislatures by the National Rifle Association.

Crime and Courts: ‘Shoot first and ask questions later’

Derided by detractors as the
“shoot-first-and-ask-questions-later” law, or the “make-my-day”
doctrine, castle doctrine proposals have been aggressively pushed
in state legislatures by the National Rifle Association.

In 2007, a suburban Houston, Texas, resident named Joe Horn
spotted a couple of burglars at his neighbor’s home. He called 911
and asked a dispatcher if he should stop them with his shotgun. The
dispatcher told him to sit tight.

That wasn’t OK with Horn, who noted that the “laws had been
changed” in Texas, and that he had a right to protect himself.

“I’m gonna kill ’em,” he told the dispatcher.

And he did, with three shotgun blasts to the back as they
crossed his yard with a bag of stolen goods. He was never charged
with any crime related to the killings.

The law that Horn was talking about is the “castle doctrine”
statute, many versions of which are sweeping the nation. The law
holds that the home is a castle, and any man or woman can take
whatever means they deem fit to protect it. In Texas, the castle
doctrine law covers not only the home, but also anywhere a person
has “a right to be.”

Derided by detractors as the
“shoot-first-and-ask-questions-later” law, or the “make-my-day”
doctrine, castle doctrine proposals have been aggressively pushed
in state legislatures by the National Rifle Association, which
after successfully lobbying to legalize concealed carry of firearms
in every state but Illinois, has made the castle doctrine its
central focus.

“This really comes down to a question of fundamental American
justice and what you believe it should be,” NRA lobbyist Darren
LaSorte told Wisconsin’s Assembly Judiciary and Ethics Committee at
a public hearing on the proposal in May.

At least 28 states now have some version of the law. In
Wisconsin, castle doctrine proposals passed the state Assembly in
2007 and 2010, the latter by a 68-29 margin in a Legislature
controlled by Democrats. Both times the proposal died in the
Senate. Castle doctrine bills in the Senate and Assembly this year
are still being tweaked and have yet to get out of committee, but
with Republicans in charge of the Legislature and a Republican
governor, some version is likely to become law.

Castle doctrine laws shield citizens from criminal charges and
civil lawsuits if they use deadly force against a home intruder. In
some states, like Texas, that protection is extended to places
outside the home.

Wisconsin’s proposal in the Assembly, which originally protected
residents in their homes, has been amended to include vehicles and
businesses. But the NRA wants more.

In some states, laws that require citizens to retreat if
possible to avoid a deadly confrontation have been turned back by
“stand-your-ground” provisions within castle doctrine bills.
Current Wisconsin law doesn’t call for a retreat, but courts decide
whether the use of deadly force is reasonable.

“Right now there’s no statutory obligation (in Wisconsin) to
retreat if you’re attacked,” LaSorte says in an interview. “But it
is used by the courts to consider reasonableness when a person has
to act. So we would just like a person who’s being attacked in a
very serious manner to not have to look behind them, look to the
side to see if they can get away, and stand their ground, if that’s
what they deem is appropriate, and fight.”

But critics say the law is unnecessary because no one can show
any evidence that any Wisconsin resident has ever been prosecuted
for killing someone while being attacked.

“This is a solution looking for a problem,” says Jeri Bonavia,
executive director of Wisconsin Anti-Violence Effort. “We already
have the ability to protect ourselves here in Wisconsin, so they’re
creating a scenario that just doesn’t exist.”

There are examples of citizens who have used deadly force and
not faced prosecution. Take Kala Kornell, who in 2003 gunned down
two men, killing them both, on Madison’s north side after they
broke into her home looking for drugs. While the castle doctrine
proposals pending in the Legislature specifically exempt those
engaged in illegal activity from protections against civil and
criminal liability, prosecutors determined that Kornell acted in
self-defense, despite the fact that she was convicted of drug
dealing after police found crack cocaine in her pocket after the
shooting.

Dane County District Attorney Ismael Ozanne says that while in
some states the burden of proof in cases of homicide in
self-defense is on the person who used deadly force, in Wisconsin,
the burden of proof is on the state.

The current system, he says, “works out just fine for us.”

Ozanne worries that the bill could be used by homeowners to
exact the ultimate punishment on burglars, even if the intruder is
trying to escape.

“If someone’s in your house and they’re running out and there’s
no issue with your safety and you shoot them, the castle doctrine
would probably give you cover,” Ozanne says. “That may not be the
best thing for society.”

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Greg O’Meara, a Marquette University law professor and chairman
of the Wisconsin State Bar’s criminal law section, goes even
further. He told the Assembly judiciary committee that the law
could potentially provide cover to someone who commits premeditated
murder.

“What you’re really doing with this bill is building in a
defense for someone who might be killing someone in their own
home,” he said. “It could be open season for people who commit
domestic violence.”

O’Meara said that the State Bar’s criminal law section,
comprised of 600 defense attorneys, prosecutors, academics and
judges, Democrats and Republicans alike, voted unanimously to
oppose the proposals.

Wisconsin, he said, already offers more protections than most
states for those acting in self-defense. The castle doctrine, he
said, could force judges to presume that execution-style killings
or even premeditated murder are reasonable.

“When someone has shot his wife, shot his girlfriend, killed
somebody he’s intended to kill for a long time and comes to court
and says, ‘I was mistaken, I thought they were a home intruder,’
they get this presumption,” he said.

But state Sen. Van Wanggaard, R-Racine, who introduced the
proposal in the Senate, testified that fears about the legal
ramifications of protecting oneself or one’s family could mean the
difference between life and death when faced with a situation that
requires a split-second decision.

“This would remove that psychological impasse that an individual
might have to react to protect their family or themselves from
imminent danger,” he said.

It did with Horn, the man who gunned down the burglars in Texas
in November 2007, only two months after the state enacted its
castle doctrine law.

“The laws have been changed in this country since September 1,”
he told the dispatcher before killing the men. “You know it and I
know it.”

A resident facing an intruder in his or her dwelling would have
greater latitude to use force, without fear of criminal prosecution
or civil liability, under a bill passed by the Assembly on Tuesday.
The proposal is called "the castle doctrine," from the saying
"one's home is one's castle."